No. 88-77

IN THE SUPREME COURTOF THE STATEOFMONTANA
1988

RAMONAMEDDERS and RICHARDMEDDERS, PlaintiffsandAppellants,-vsARNOLD JOYES

### ,Defendantand Respondent.

APPEAL FROM: District Court of the Fifteenth Judicial District, In and for the County of Sheridan, TheHonorableM. James Sorte,Judgepresiding.
COUNSELOF RECORD:
ForAppellant: Kevin T. Sweeney,Sweeney & Healow,Billings, Montana David Cybulski, Plentywood,Montana
ForRespondent: Habedank,Cumming & Best;3-, Sidney,Montana Robrrr .J 

### -SnjGCiC

Submitted on Briefs: July 14, 1988

Filed:

# KIG 9 

## 1988'Mr. Justice L. C. Gulbrandson delivered the Opinion of the Court.

Ramona and Richard Medders (the Medders) appeal a Sheridan County District Court grant of summary judgment to Arnold Joyes (Joyes). We affirm. On May 27, 1984,vehicles driven by Ramona Medders and Arnold Joyes collided on awell graveled and recently graded county road in Sheridan County, Montana. Medders was traveling north and Joyes was traveling south on the county road. The head-on collision occurred at the crest of a hill at approximately 3:00 p.m. in good weather. SheridanCounty Deputy Sheriff Brost (Brost) arrived at the accident sceneat approximately 4:00 p.m. to find Ramona Medders and her eleven-year-old daughter, Tracie, trapped in their 1979 ChryslerCordoba. Brost also foundJoyesat thewheel of his 1984 Ford Bronco I1 and Arnold's wife, Iris Joyes, unconscious in the front passenger seat. All four accident victims were subsequently transported by ambulance to a Plentywood hospital where Iris Joyes later died of injuries she sustained in the accident. Brost conducted an examination of the accident scene and noted his findings on a State of Montana accident investigation report form. Sheriff Holt (Holt)photographed the accident scene before the vehicles were moved. Brost determined that the gravel road was twenty-two feet wide at the point of impact, and that the eastern edge of the skid mark leftby the right rear tire of theMedders' vehiclewas twelve feet from the eastern edge of the road. The eastern most edge of the skid mark made by the left rear tire of the Joyes' vehicle was twelve feet nine inches from the eastern edge of the road. The Medders' vehicle left a skid mark

### twenty-nine feet long and the Joyes' vehicle left a twenty-one foot five inch skid mark. The acccidentoccurred just to the north side of the crest of a hillwith the ~oyes' vehicle nearing the crest and the Medders' vehicle on the downhill side. Sheriff Holt's photographs portray the two vehicles where they settled after recoil from the force of the impact. The rear end ofboth vehicles shifted to the east immediately after impact. Brost determined that the two vehicles collided primarily on the left front halves and noted the position of the two vehicles at impact on his accident investigation report and deposition diagrams. Officer Brost's calculationsand SheriffHolt's photographs place the Medders' vehicle in the lane of traffic properly occupied by the Joyes' vehicle immediatelybefore impact. On March 5, 

### 1986, the Medders filed a complaint alleging that Arnold Joyes operated his vehicle in a 

### negligent manner thereby causing the accident in question. Joyesmoved for summary judgmenton September 10, 1987. The District Court granted summary judgment to Joyes on October 15, 1987,and issued the following findings: 1. That drivers of motor vehicles in the State of Montanahave an obligation, pursuant to Section 61-8-321, MCA, to drive upon the right half of the roadway, with three statutory exceptions, none of which apply to the case atbar.
2. 

### The physical facts of the subject accident, which have not been controverted or rebutted by Plaintiffs, showthe following: (a) Thatprior to and at the time of the collision, Defendant Joyes'vehicle was being driven in the right half of the subjectcounty roadpursuant to Section 61-8-321, MCA; (b) Thatprior to and at the time of the collision, Plaintiff Ramona Medders' vehicle was being driven in a northerly direction within Defendant Joyes' southbound lane of traffic.
3. That there has been no credible or admissible evidence indicating excessive speed on the part of either Plaintiff Ramona Medders or Defendant Joyes.
4. That there has been no substantial evidence offered by the Plaintiffs to raise a genuine issue of fact that the accident would nothave occurred but for the fact that Plaintiff Ramona Medders was driving her vehicle outside the right half of the roadway in violation of Section 61-8-321,MCA.
5. The materials offered by Plaintiffs in opposition to Defendant's motion for summary judgment are not material or of a substantial nature, but rather [are] fanciful, frivolous, gauzy, or merely suspicious.
The Medders appeal the District Court's grant of summary judgment to Joyes and we identify the following issue for review: Do genuine issues of material fact exist which preclude summary judgment? The Medders assert that there are several genuine issues of material fact in this case. Summary judgment is improper where genuine issues of material fact exist. Rule 56(c)

## ,M.R.Civ.P. The Medders' burden on this appeal is to establish the existence of a genuine issue ofmaterial fact. Eitel v. Ryan (Mont. 1988), 751 P.2d 682, 684, 45 St-Rep.TheMedders firstclaim that there is a factual dispute as to the location of the two vehicles before and after impact. On the basis of his accident investigation, Officer Brost placed the Medders' vehicleprimarily in the left lane of traffic in violation of 

### 5 61-8-321,MCA. In support of his motion for summary judgment, Joyes also submitted an affidavit from A.D. Pipkin (Pipkin)

### , an accident investigation expert,who on June 5, 1984, investigated the

scene of this accident. Pipkin studied Brost's accident investigation report, surveyed the accident site, examined the damaged vehicles, and also concluded that Ramona Medders

was on the wrong side of the road at the time of the collision. In opposition to Joyes' motion for summary judgment, the Medders submitted an affidavit from an ambulance attendant, Paula Tinsley (Tinsley),who attended to Ramona Medders at the accident scene. In her September 23, 1987 affidavit, Tinsley recalled her two and one-half year old perception that both vehicles were near the middle of the road, that the Joynes' vehiclewas substantially in thewrong lane of traffic, and that the Medders' vehicle was substantially in the correct lane of traffic. Tinsley arrived sometime after the accidentand her recollectionsare of the shifted vehicle positions after impact and recoil. Unlike Brost and Pipkin, Tinsley did not investigate the accident scene or make any measurements to determine the locationof thevehicles immediately prior to and at the time of impact. The Medders also allege that Holt's photographs and the coroner's report concerning Mrs. Joyes' death conflict with Brost's measurements and conclusions. The Meddersdid not submitany independent accident investigationreports or other expert evidence regarding the circumstances of the accidentto supporttheir allegations. The Medders also attempt to justify Ramona Medders' failure to drive on the right side of the road by contending that the county road in question contained deep ruts which forced traffic to drive near the center of the road. Holt's photographs and Brost's deposition, on the other hand, evidence awell graded and graveled two-lane county roadwith no rutsat the locationof the accident. Initially we note that the Medders' claim that a negligence case such ashere presented is not susceptibleto adjudication by summary judgment. Brown v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1982), 197 Mont. 1, 10, 640 P.2d 453, 458. Joyes cites to Brohman v. State of Montana

(Mont. 1988), 749 P.2d 67, 45 St.Rep. 139, for the proposition that this Court will affirm a grant of summary judgment in anegligence casewhere "it is clear that aparty has breached a duty and caused an accident." Brohman, 749 P.2d at 69 (citingBirky v. Johnson (Mont. 1986), 716 P.2d 198,43 St.Rep. 488). We find the reasoning inBrohman tobe applicable to the instantcase. TheDistrict Court concluded that theMedders' evidence in opposition to the motion for summary judgment was "not material or of a substantial nature


# ..

# . I' We agree. Although theMedders dispute the fact that Ramona Medderswas traveling in the wrong lane of traffic, Tinsley's affidavit and conclusory allegationsas towhat thephotographs portray are not sufficient to give rise to a genuine issue of material fact in this case. The Medders have not presented any evidence to support the existence of a genuine issue 

### of material fact regardingthe location of the vehicles at the time of the collision. Ryan, 751 P.2d at 684. Where reasonableminds cannot differ

as to the cause of an accident, questions of fact may be determined as a matter of law. Brohman, 749 P.2d at 70,

(citingHartleyv. State (Wash. 1985), 698P.2d 77, 81). The overwhelming evidence in this case supports the District Court's conclusion thatRamona Medders' negligence caused the accident and the District Court properly granted summary judgment. The Medders next contend that there is a genuine issue of material factas to whether Joyeswas speeding at the time of the accident. The facts concerning the speed of the Joyes' vehicle are not in dispute. Joyes admits thathe was driving approximately forty miles an hour. The District Court concluded that the Medders had failed to present any credible or admissible evidence indicating that Joyes was speeding. The only evidence presented by the Medders with regard to the appropriate speed for this particular road was Ramona Medders' statement that she felt that eighteen to twentymiles an hourwas all she could handle inher car. In a written statement dated June 13, 1984, Ramona Medders claimed to have been traveling approximatley thirty-five miles an hour immediately before the accident. After instigating this litigation, Ramona Medders changed her testimony to reflect that she was traveling eighteen to twenty miles an hour. On the other hand, Pipkin, in his affidavit, stated that forty miles an hour was not excessive under the road and driving conditionspresent at the time of the accident. In addition, Richard Medders stated in his deposition that he had traveled the same county road onseveral occassions at speeds of thirty-five to fiftymiles an hour. The District Court in effect made a conclusion of law based on theundisputed facts in itsdetermination thatJoyes
was not speeding. Suchquestions of law areproperly decided by the District Court. Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact (1982)

### , 99 F.R.D. 465, 487. The Medders have presented no evidence to support their allegation thatJoyeswas driving too fast. On the contrary, the record of this case indicates that Mr. Joyes was driving in a reasonable andprudent mannerwhen his vehiclewas struck by RamonaMedders' vehicle which wasbeing driven in thewrong lane of traffic. Section 61-8-321,MCA,provides that all vehicles shall be driven on the right side of the roadway with certain exceptions not applicable to this case. The District Court concluded that Ramona Medders violated this statute and that the accidentwould not have occurred but for her negligence in driving on the wrong side of the roadway. The Medders assert that the District Court incorrectly held this violation of a statute to be negligence per se and that the lower court should instead have determined whether Ramona Medders and Arnold Joyes drove in a reasonable and prudent

manner. We find nothing in the order of the District Court to suggest that it found Ramona Medders' violation of S 61-8-321, MCA, to be negligenceper se. TheDistrict Court reviewed the evidence and concluded that Ramona Medders was the only negligent party. We have reviewed the pleadings, affidavits, answers to interrogatories, and the remainder ofthe record in this case and conclude that summary judgment

wasproperly granted. Eitel, 751P.2d at 684. Joyes requests that he be awarded attorney's fees and costs of this appeal pursuant to Rule 32, M.R.App.P. We decline to award attorney's fees in this casebecausewe find that appellants' arguments, although not persuasive, were within thebounds of reasonable appellate argument. LaForest

v. Texaco, Inc. (1978), 179 Mont. 42, 585 P.2d 1318. Costs of this appeal, other than attorney's fees,are tobe awarded to Joyes as the prevailing party pursuant to S 25-10-104(2), MCA

# . Affirmed.

\

We concur: /'